Chiu Man Mo v. The Queen

CACC000118/1969

IN THE SUPREME COURT OF HONG KONG

APPELLANT JURISDICTION

CRIMINAL APPEAL NO.118 OF 1969

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Coram: Huggins, J.

Date of Judgment: 7 March 1969

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JUDGMENT

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Huggins, J:

1. In this case the appellant was charged with being a suspected person found loitering and with unlawful possession of an instrument fit for an unlawful purpose. Evidence was given that two police officers at 11.10 a.m. saw the appellant acting suspiciously in the street. Unfortunately the witnesses were not asked what they meant when they said that he was "acting suspiciously", but they went on to describe how the appellant was seen to walk down the street and to look into parked cars. He tried to open the doors of several cars. When he got to the third car, having failed to open the door he produced a knife and tried to prise open the ventilating window. At that point he was arrested.

2. The defence put forward was that the appellant was lying asleep on his bed when the police came and arrested him. Before me his case has been that the police fabricated the evidence against him and he has denied ever having tried to open the window of this car.

3. The learned magistrate believed the police evidence and I have no reas on to disagree with his findings. The only question upon which I have sought the assistance of counsel for the Crown has been whether the evidence which was accepted was sufficient to justify a conviction on the first charge. It has been held, and indeed it is inherent in the section under which the charges laid, that at the time of the loitering the accused must be a suspected person. It was said in Cosh v. Isherwood⁽¹⁾:

"Any acts relied on to show that he was a suspected person must be separate from the acts which are relied on to show that he was loitering with intent to commit a felony. The acts must be separate acts, but they need not be different in kind."

If the evidence of the police officers meant tint the appellant had acted suspiciously before he approached any of these cars, then of course there is no difficulty. But as they were not questioned about this I think I ought to assume that the suspicious actions were what is then described, ...(illegible) the ...(illegible) and looking into private cars. In Cosh v. Isherwood⁽¹⁾ what happened was that two young men saw the appellant looking into private cars while they themselves were sitting in a car. Having watched the man for some time they then got out of their car and followed him. The man continued looking into other cars and subsequently the man was arrested. The court held that there was a clear separation of the acts arousing suspicion and the acts which amounted to leitering with intent: the point of separation was when the two young ...(illegible) got out of their motor car. I have come to the conclusion that in this case there is a similar point of division, although it is not perhaps quite so clear out as in that case. The acts arousing suspicion were the peering into the cars and trying the handles of the doors. It was when the appellant produced the knife and tried to open the window that the police stopped in and arrested him. By that time he was clearly a suspected person and in my view the evidence was sufficient to justify a conviction.

4. I emphasize that in the present case there was in fact a difference in the nature of the act which led to the arrest of the appellant from the acts which arouse suspicie. Had there not been such a difference in the nature of the acts it would have been difficult without express evidence as to the point when their suspicions were aroused to have supported this conviction.

5. The appeal is dismissed.

7th March, 1969.

Representation:

(1) (1968) 1 All E.R. p.383 at p.384